It is becoming common nowadays to see lawyers from countries in the EU requiring the enforcement of sentences passed by tribunals in other EU countries. As an example if your debtor has moved to Spain leaving no assets in his home country, you can still obtain the enforcement of the legal resolution in Spain. Another common example is child custody after a divorce, when one of the parents moves to another country with the children, breaking previous court orders in another country.
The “enforcement of foreign judgments” is the recognition and enforcement in one country of judgments rendered in another. The “recognition” occurs when the tribunals in one country accepts a judicial decision made by the tribunals from another country and issues a court order in practically identical terms without rehearing the material from the original lawsuit. The courts in the first country can then seek the “enforcement” in the second country and the recognizing court will make whatever orders are appropriate to make the original judgment effective.
As an example if the foreign judgment is a money judgment and the debtor has assets in the recognizing country, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country.
In Spain foreign judgments are recognized based on bilateral or multilateral treaties or understandings.
For European Union countries, regulation no. 44/2001 adopted by the council of the European Community on the 22 December 2000 removed barriers impeding the free enforcement of law and movement of judgements in civil and commercial matters in all European Union. Denmark initially opted out, but ratified the agreement later on entering into force for Denmark on 1 July 2007.
For most countries outside the European Union Spain follow the Hague convention from 21 October 1976 (it came into force in Spain on 3 April 1997). Bilateral agreements regulate foreign judgments between Spain and the following countries: Colombia, Uruguay, Israel, Brazil, Mexico, China, Bulgaria, Morocco, Rumania, Thailand, El Salvador, Tunisia and Russia.
Spanish law requires that all judicial decision be notified to the other party prior to enforcement. This is order to leave the possibility for appealing or to reach an agreement without the need for enforcing the judgment.
The Spanish Civil Procedure requires all documents the documents to be submitted before a Spanish court translated into Spanish. Therefore is absolutely necessary to translate the judicial decision into Spanish. It is important to note that the other party can challenge a normal translation therefore, even though it is not strictly necessary, a sworn translation will be required. An apostille is required most of the time.
You can start the procedure in various ways including through the Spanish Ministry of justice, the consulate, the court officers in the country of origin or through a lawyer in Spain. This last option is the safest and the most trouble free as someone will follow up your case personally and give you regular updates.
The procedure to execute foreign judgments starts with a request submitted by the accusing party stating a brief explanation of the facts and legal basis that support it, according to article 549 of the Spanish Civil Procedure Act and attached with the documents set out in article 550: the Judgment, its translation into Spanish and the documents to prove that said judgment is firm and has been notified to the debtor.
Once the designated competent Spanish court approves the foreign judgement the enforcement procedure can start.
In Spain the same court that recognise the foreign judgement is responsible for the enforcement (As article 545 of the Spanish Civil procedure act).
The details of the enforcement procedure will vary with the type of judgement. In case of judicial monetary claims the Spanish court will grant a 10 days period in order for the accused to reject the execution on the motives that are established in arts 556 y 559 of the Spanish Civil Procedure Act (prescription, payment or settlement and lack of capacity). As this period is concluded, the creditor will have 5 days to present an answer against the debtor’s opposition. The Court will then deliver a final judgment ordering that the proceeding be continued and that the seized goods be handed over to the creditor or to dismiss the seizure that took place.
These procedures can be quite complex; therefore it is always better to seek the advice of a Spanish lawyer familiar with international laws and procedure.